“An attack to the right of defense” (article originally published in the newspaper Folha de São Paulo on June 10 of 2016)
Throughout history, lawyering has been respected as an institution dedicated to defending freedom, the rule of law, and citizenship. These prerogatives were unquestionable, in particular because it was known that, without them, abuse would be inevitable given the almost natural tendency of the all-mighty Government to subdue those under its authority.
Even during times of exception, Brazilian lawyers were recognized as a free and independent voice, serving the unfortunate ones that were haunted by all sorts of accusations.
Nowadays, however, although under the rule of law, the populist, moralist discourse wishes to suppress the right of defense of the accused, denying them the right to an attorney, as if reviving the maxim of inquisition that the innocent need no lawyers, while the guilty do not deserve them.
Even worse, the repressive Government is no longer satisfied by the mere fair punishment of the accused after a trial that ensures adversarial hearing and broad defense through the inherent means, including one’s right not to self incriminate.
It is concerning to see that the typical hysteria of the vigilantes is turning lawyers into the preferential target of investigations. These are not just attempts to undermine the technical defense by foregoing citizens’ constitutional rights, commonly violating the intimacy of people, suppressing the right to certain means of evidence or filing of appeals alleging that these are merely to stall the case.
Now the lawyers themselves are under attack and being prevented from instructing their clients, talking to them in private, and, thus building their arguments and reasoning for a defense.
Wire taps are being used to listen in to conversations that should be safeguarded by the same privilege given to confessions made to religious ministers and private medical disclosures.
They wish to hear the accused confessing the crime to the one they are asking for help. Or else, they want the lawyers themselves to succumb and, not having any other alternatives, make their clients confess to the theory of the prosecution or enter into a leniency agreement.
And, finally, if the accused does not confess to the crime, the construction of a defense that is not adjusted to the accuser’s preconceived model of fact or merely choosing means of evidence to defend the accused are deemed to be lies spun to prevent the quest of the “truth”.
Society must be warned of the danger of there being a day in which the only active voice is of the accusation; a day when lawyers are as subdued as the accused and can no longer be the free and independent voice of the unfortunate ones haunted by criminal accusations.
A day in which the summary lynching by the public opinion will end up stripping the accused and their lawyers of something basic up to then: the mere right of defense.